Do hyperlocal websites fall foul of Leveson and the new press regulator and libel laws?

Last week I spent a couple of hours at a consultation in Birmingham run by the Press Recognition panel, which is the regulator set up to oversee the creation of (a?) new press regulator(s) following the Leveson Inquiry and the Royal Charter. (I know this has already got a bit “what?”, but stick with me.)

So this is how my thinking has evolved…. if you find an asterix next to an assertion I’m not 100% sure this is right – or that I have conveyed it correctly (some things may be accurately reported but are factually wrong!)

This is a disaster!

This is what I picked up from the press recognition panel.

Under the new law a publisher is someone(two) who publishes either online or in print and has two or more authors. So according to this a publisher would include a number of no pay hyperlocals.

In the autumn the law of how a libel action is brought will change for publishers.

If you are part of a recognised Royal Charter approved press complaints body – complaints against you will come through that and will be resolved through mediation. If someone does sue you they will be required to pay both their’s and your legal fees*.

If you are not part of a recognised complaints body people can sue you and you will be required to pay both yours and their legal fees.

This leaves two or more person hyperlocals that are not in it for the money very exposed. The conversation, involving myself, Dave Harte and others, at this consultation included various thoughts that I took down in note form…

The mere threat of bankruptcy can stop people publishing, Does this mean we need a hyperlocal regulator to provide this protection to hyperlocals? Who pays for it, do the hyperlocals need to pay for it? How to create one as cheaply as possible? Could there be a cooperative? Are hyperlocals aware of their potential exposure?

This also seemed to have implications for student journalism and perhaps even for sites like Birmingham Newsroom – blogs published by public services. two or more people writing them? Then they are publishers.

The two people from the press recognition panel were very clear that hyperlocals fall within the change of law.

Oh hang on. Phew, I think…

That was last Wednesday evening and I left worried about the future of hyperlocals.

On Thursday I spent the morning at #commscamp15 and popped along to the legal session run by David Banks. He was talking about other changes in libel law and I shared what I thought I had learnt from the night before – and my concerns about it.

Someone else in the session looked a bit more closely at this. Kelly Quigley-Hicks dug out the legislation and (I think) established that the understanding I (and others) had gleaned from the consultation was wrong. The hyperlocals I’m concerned about are exempt… this is what she writes:

What is the definition of a ‘publisher’? If you have more than two people publishing news-related content, you may be defined as a publisher and be sued for libel as outlined in the Crime and Courts Act 2013. Exceptions include public bodies and charities publishing “news-related material in connection with the carrying out of its functions.” and multi-author blogs that come under “microbusiness” definitions

Checking her working I find the law says “exclusions from the definition of relevant publishers” include:

Public bodies and charities

6 (1) A public body or charity that publishes news-related material in connection with the carrying out of its functions.

(2) “Public body” means a person or body whose functions are of a public nature.
Company news publications etc

7 A person who publishes a newsletter, circular or other document which—

(a) relates to a business carried on by the person, and

(b) only contains news-related material on an incidental basis that is relevant to the person’s business.
Micro-businesses

8 (1) A person who, in carrying on a micro-business, publishes news-related material where either condition A or condition B is met.

(2) Condition A is that the news-related material is contained in a multi-author blog.

(3) Condition B is that the news-related material is published on an incidental basis that is relevant to the main activities of the business.

(4) “Micro-business” means a business which—

(a) has fewer than 10 employees, and

(b) has an annual turnover not exceeding £2,000,000.

(5) The number of employees is to be calculated as follows—

(a) find the total number of hours per week for which all the employees of the business are contracted to work;

(b) divide that number by 37.5.

(6) “Employee” has the same meaning as in the Employment Rights Act 1996 (see section 230 of that Act).

(7) “Multi-author blog” means a blog that contains contributions from different authors.

So this appear to mean that most hyperlocals are not included.

So questions to resolve….

Is this right, are most hyperlocals excluded, therefore don’t need to join a press complaints body?

If this is right what is the libel law that now applies to hyperlocals (who pays the legal bills)?

Does this exemption apply to student publishing online as part of their course? After all universities are not micro-businesses.

16 comments

I think it might be useful to make the point about why the publisher distinction is important. The definition of a site with one or more authors is a useful starting point.

If a site with one author makes a libellous statement then the situation is simple. That author/owner is liable under libel law and is likely to carry costs if found liable.

In a case where a site has two or more authors and it too makes a libellous statement then this is when the status of a publisher kicks in. The libelled individual can choose to pursue the actual author and/or the person who owns the site.

In some ways this is better than the previous position where it was more likely that the site owner would be assumed to be a publisher and pursued.

It is important to be clear that this issue of whether or not someone is a publisher doesn’t provide exemption from libel laws or potential costs. It creates a situation where a site owner might be able to pass off liability for libel onto the author that made the libellous statement. At the end of the day if libellous statements are made then someone is still going to court and someone is going to pay those costs.

Protection under a press complaints body will make libel less onerous for publishers. The new regime basically says “if you are part of a recognised body and someone sues you – they are liable for both sets of costs” – this is part of the Leveson changes. So what happens to people who are not publishers, is something I’m trying to understand – get answers to.

The changes in the law are designed to PROTECT(appropriately-behaved) publishers as well as protecting the public. It is not clear to me what the author of this piece is worried about. The following comments may help to relieve his concern.

1 The imposition of legal costs on publishers who are NOT members of a recognised regulator applies only if such a regulator exists and it would have been reasonable to join it (see para (2) of http://www.legislation.gov.uk/ukpga/2013/22/section/40). So you don’t have to worry that hyperlocals will suddenly be hit with a libel claimant’s legal costs by virtue of there being no recognised regulator for you to sign up to.

2 There is a regulator currently in the process of being set up, the Independent Monitor for the Press (IMPRESS for short), which has hyperlocals very much within in ambit and which has said that it will apply for recognition (see http://impressproject.org/news-2/).

Simon – thank you (I am the author). What this doesn’t make clear for me are what happens with the majority of hyperlocals, most of whom who are exempt? So a husband and wife who run a site but make no money from it. They are exempt so don’t need to join a regulator. If they are sued do existing laws apply in terms of who bears the cost? If they want to benefit from the protection on libel costs would they need to join a regulator, even though they are exempt?

I’m not a lawyer, but my understanding is that this is pretty straightforward. The law we are discussing (sections 34-42 of the Crime and Courts Act 2013) applies to “relevant publishers”. If a hyperlocal (or any other journal) is not within the definition of that term, THIS law doesn’t apply to them – neither the carrots, nor the sticks (but other laws do!).

Those publishers who want the benefits of protection need to set themselves up as “relevant publishers” and join a recognised regulator. There is a list of categories which fall outside the definition but, in the case of a “micro-business” publisher, there is a choice. A “micro-business” publisher is outside the definition of a relevant publisher, but it can CHOOSE to come within the definition simply by joining a recognised regulator (see Section 41, para (7) http://www.legislation.gov.uk/ukpga/2013/22/section/41).

In April 2013 I interrupted my paternity leave to invite myself into the DCMS process for enacting the Leveson report. I had attended a meeting called by the Media Reform Coalition on blog regulation. And was unsurprised to find DCMS was having trouble working out what a blog was. At a DMCS meeting attended by some leading bloggers (ie the few bloggers DCMS had heard of and could assemble at a days notice) I made a point about regulatory proportionality, encouraging market entry etc and not regulating smaller bloggers. I then took some reassurance from the size/turnover threshold excluding small hyperlocals.

And then I more or less forgot about Leveson. I kept bumping in to the lovely Jonathan Heawood of Impress, the thinking man’s regulator but I felt that I had done my bit for media regulation years ago with helping create OFCOM and didn’t want to return to it. Until the Press Recognition Panel got in touch – it’s their job apparently to decide if a regulator meets the Leveson criteria. I met with the lovely David Wolfe and Tim Suter in April 2015. My main objective was to ensure that hyperlocals weren’t suddenly burdensomely regulated.

But, as I had been ignoring Leveson I discovered I had missed the bit about people covered by an approved regulator having access to a low cost dispute resolution procedure. David Wolfe pushed this quite hard as a, to me at least, original line of thinking – would it make hyperlocals bolder and give them confidence to act if the potential threat from litigation, disproportionate for a micro business was diminished?

As I was chatting to a hyperlocal at that time who was having to spend money on lawyers to fend off daft threats from their local MP this seemed attractive. Hyperlocals have raised with me quite a few times their inability to get insurance against defamation, Wolfe seemed to have a valid line of thinking. Instead of ‘see you in court’ with the hideous costs one could say ‘see you in the low cost dispute resolution procedure’.

BUT (that is a big but) this would only work for a hyperlocal if the regulator had other rules that were very simple and could be followed by a volunteer or nil profit outfit and was cheap to join – maybe <£100 a year. So if the Press Recognition Panel was looking to approve a regulatory regime that claimed to help hyperlocals these were the characteristics it should look out for – cheap and simple entry for tiny operators.
What we didn’t discuss (it was an assumption that needs testing) was whether hyperlocals can opt-in to the Leveson regime – in general hyperlocals fail the test of ‘do you have ten or more employees AND a turnover of more than £2m’.
There is an handy infographic here https://www.gov.uk/government/news/leveson-new-proposals-to-ensure-small-blogs-are-exempt-from-press-self-regulation

This has prompted me to look at the minutes of my chat with the PRP on their website which i didn't get around to correcting at the time – I see they have got some numbers wrong and confused the odd fact here and there but they are fine.

Thanks Will – that helps a lot and and I think from the law that Simon has taken a closer look at: micro-businesses can Choose to join a regulator. Which takes us back to part of the conversation that I had with Dave Harte at the consultation itself – what would regulator look like that’s cheap enough and anti-bureaucratic enough to be a sensible thing for a hyperlocal to choose to join. Again thought I’m really keen to see the PRP just clarify whether this conversation makes sense. Sadie East has said she’ll look at what it might be helpful for them to say.

I seem to read the infographic differently to everyone else. For me it says: ‘Is publishing news the main focus of your business?’ Then it exits you to ‘Yes (you are a relevant publisher)’. If the answer is ‘No’ but you do run a blog as part of a business that isn’t micro then it exits you to ‘Yes (you are a relevant publisher). If you run a blog and you are a micro business then it exits you to ‘No’. I think it’s saying that if you run a news business, big or small, then you’re a relevant publisher.

Dave says he reads the graphic as saying that, if publishing news the main focus of your business, you are a relevant publisher.” That’s not quite right. If the publication is a blog, you never get to that question. Blogs get directed to a size question instead.

So, for hyperlocal BLOGS, being small is a criterion which allows you to choose whether to be a relevant publisher. But Dave is right for hyperlocal NON-blogs.

And, before anyone asks, I haven’t found a definition of “blog” in the Act.

The sign of a good diagram is always how many people are needed to interpret what it is saying.

From my reading of that you start at where it says start and must answer yes to all of the questions before you even get to the question of whether or not you are a blog. Many hyperlocal sites are likely to be deemed not relevant publishers on things like carrying out commercial activity and what constitutes editorial control.

Which raises the question of what is commercial activity? Is an ad supported site a commercial endeavour? Simplistically I’d say yes but who knows from that diagram.

It does look like it is designed to exclude more than include. Which is fine by me. I’m very wary about the prospect of regulation of blogs or hyperlocal sites. It covers such a ridiculously large number of potential sites that I can’t ever see it being manageable or desirable.

This is the best discussion I’ve yet seen of the ‘relevant publisher’ question. I think that Simon’s analysis is very sound. Hyperlocals which are not ‘blogs’ are in so long as they meet the other criteria. The Act doesn’t define blog. In any case, our aim at IMPRESS, as the lovely Will Perrin says, is to provide low-cost <£100 regulation for hyperlocals and others who want these protections in return for following certain basic standards of news publishing. Deal?

Despite Maria Miller’s assurance in 2013 that defining a blog would be ‘pretty straightforward’, this current confusion/uncertainty was anticipated, as Will Perrin says, in various quarters in 2013.

A few points (which relate to Nick’s Q1): the hyperlocal description is used quite broadly and its clear that self-described hyperlocal activity includes a wide range of activity (within and between sites): from simply advertising community events, to doing serious investigative journalism (of the type that might attract a libel claim). Many of our labels for media organisations are tied to the distribution platform, but don’t differentiate between types of journalistic activity and reach. That presents us with a problem when we think about contemporary regulation (Lara Fielden’s reports for the Reuters Institute expose this problem).

Leveson’s report talked about the ‘press’ but – Will Perrin has previously made this point – it’s a metonymic label, just like hyperlocal. Of course, Leveson was primarily concerned with national newspapers, given the impetus for the inquiry.

On Nick’s Q2: the status quo remains for ‘irrelevants’, under the current costs regime (which applies to *all* publishers, from an individual tweeter/blogger to a mainstream media organisation). We tend to think of libel as a ‘media’ issue, but of course many cases (the annual data is patchy on this) involve ordinary individuals, caught up in a personal dispute with another individual – a colleague/employer, for example. Costs protection reform for libel and privacy was on the cards (with a public consultation closing in November 2013) but it’s all gone quiet, as far I as I know. English PEN has another report that deals with defamation costs (2012), which highlighted many problems with the costs regime: http://www.englishpen.org/campaigns/alternative-libel-project-final-report-launched/

Coming onto the conversation late, but from what I’ve read I think there’s also confusion around whether, regardless of being a blogger or other form of publisher, if the changes relate only to original content, or aggregated content as well. Also, in terms of the text re. charities and public bodies, the wording almost feels a though it’s narrowing it down to B2B ‘news’ publishers rather than B2C, which is obviously what most hyperlcocal publishers / community journos / bloggers exist for.